Justice in India, the wheel of which has been slow and wobbly, and was rolling in odd directions over the years, has now started showing some sign of improvement. With the recent historic rulings, the judiciary has restored its former glory and instilled confidence in the people of the country in the law of the land.
In the 1970s the Supreme Court, which is meant to uphold the Constitution of the country, endorsed emergency laws that denied citizens any recourse against unlawful arrest. Last year it anachronistically ordered cinemas to play the national anthem before every screening, and moviegoers to stand to attention each time.
In the recent past, courts in the country have delivered a series of important judgments that, taken together, push the country firmly in a more liberal direction. It is a good sign that the people of the country now have regained some faith in the judiciary that it would deliver justice to them.
Privacy is fundamental right
The Supreme Court on August 24 unanimously ruled that individual privacy is a fundamental right. The verdict will impact everything from the way companies handle personal data to the roll-out of the world’s largest biometric ID card programme.
The nine-member bench of the Court announced the ruling in a major setback for the Narendra Modi-led BJP government, which argued that privacy was not a fundamental right protected by the Constitution of India.
The Court, overruling two earlier rulings by large benches that said privacy was not fundamental in 1954 and 1962, now ordered that privacy is “an intrinsic part of the right to life and liberty” and “part of the freedoms guaranteed” by the Constitution.
“This is a blow to the government because the government had argued that people don’t have a right to privacy,” said Prashant Bhushan, a senior lawyer involved in the case.
Constitutional experts believe the judgment has a bearing on broader civil rights, and a law that criminalises homosexuality. Lawyers say the judgment will also have an impact on a ban on the consumption of beef in many states and alcohol in some states.
In his personal conclusion, Justice Sanjay Kishan Kaul wrote privacy is a fundamental right and it protects the inner sphere of an individual from interference from both state and non-state actors and lets individuals make autonomous life choices.
“The privacy of the home must protect the family, marriage, procreation and sexual orientation,” Kaul wrote.
The privacy judgment was delivered at the end of the tenure of the chief justice of India, Jagdeep Singh Khehar, who retired on August 28.
It comes against the backdrop of a large multi-party case against the mandatory use of national identity cards, known as Aadhaar, as an infringement of privacy. There have also been concerns over data breaches.
Critics say the ID card links enough data to create a full profile of a person’s spending habits, their friends, property they own and a trove of other information.
Aadhaar, which over one billion Indians have already signed up for, was set up to be a secure form of digital identification for citizens, one that they could use for government services. But as it was rolled out, concerns arose about privacy, data security and recourse for citizens in the face of data leaks and other issues.
Aadhaar has been made mandatory for the filing of tax returns and operating bank accounts. Companies have also pushed to gain access to Aadhaar details of customers. Those opposed to the growing demand for Aadhaar data cheered the ruling.
“Truly a victorious week for India – upholding liberty, dignity and freedom for all,” Jyotiraditya Scindia, a Congress member of parliament, said in a tweet.
Senior Lawyer Bhushan said while government demands for the use of Aadhaar for tax purposes could be considered reasonable, any demands for the use of Aadhaar for travel bookings and other purchases could now be questioned in the face of the ruling.
“The consequences are huge,” said a constitutional scholar, Menaka Guruswamy. “This goes far beyond Aadhaar. The ruling will decide the manner in which constitutional democracy will endure,” he added.
In May last, security researchers discovered that the Aadhaar information of as many as 135 million people had leaked online. UIDAI, the agency that governs Aadhaar, has repeatedly said that its data is secure.
The citizen’s concern was that if the court were to throw out privacy as a basic right, it would give the state much greater powers to monitor people and to enact laws with an impact on personal freedoms. If the court rules for the government, then it’s going to impact all kinds of footprints of citizens, both professionally, and in their private lives.
Critics say personal rights have come into sharper focus since Prime Minister Narendra Modi’s ruling alliance took office in 2014 as it pushes a nationalist agenda at the cost of individual freedoms.
Triple talaq unconstitutional
In a second landmark decision, on August 22, the Supreme Court ruled that a law allowing Muslim men to divorce their wives instantly by uttering the word “talaq” three times was unconstitutional, in a major victory for Muslim women who have spent decades arguing it violated their right to equality.
The Court ruled to outlaw “triple talaq”, a tradition whereby Muslim men could annul a marriage simply by saying “I divorce you” three times.
Most Muslim-majority countries, including neighbouring Pakistan and conservative Saudi Arabia, long ago abandoned the practice for being sexist or questionable under religious law. But politicians in India had kept it going to win conservative Muslim votes.
Hindu nationalists hailed the ruling as a blow to the “appeasement” of minorities. Muslim liberals and women’s groups that have long opposed the practice also welcomed the decision. Yet the ruling was narrow: three judges to two.
Constitutional experts said their legal reasoning fell short of upholding personal rights over religious laws. The judgment did not ban other forms of Muslim divorce that favour men, only the instant kind.
Under the ruling, the court said the government should frame new divorce legislation to replace the abolished practice of triple talaq.
“Finally, I feel free today,” said Shayara Bano, who was divorced through triple talaq and was one of five women who brought the case.
The ruling was delivered by a panel of five male judges from different faiths – Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. Three of the five ruled that the practice was unconstitutional, overruling the senior-most judge in India, the chief justice. He told the government to come up with a new law within six months.
Leading Islamic scholars say Muslim divorce law as set out in the Koran does not justify the use of triple talaq.
Opposition to the law helped forge an unlikely coalition of Muslim women and Prime Minister Narendra Modi and his ruling Hindu nationalist party, which wanted the law quashed, and pitted it against Muslim groups that say the state has no right to interfere in religious matters.
Some fear that the Hindu majority is trying to limit Islamic influence in society. Muslims make up about 14 per cent of India’s 1.3 billion people.
“It grants equality to Muslim women and is a powerful measure for women empowerment,” Prime Minister Narendra Modi said in a tweet.
“The Supreme Court has a right to interfere in the personal space and they have done so,” said Maneka Gandhi, minister for women and child development.
Meanwhile, the All India Muslim Personal Law Board said it would contest the court’s decision. “The fact that only three of the five judges have deemed the practice illegal shows that there was no clear decision,” member Maqsood Hasani Nadvi said.
Rights groups Amnesty, while welcoming the judgment, called for the repeal of all religious family laws that violate women’s rights.
SC refuses to hear gay-sex ban challenge
The Supreme Court on August 23 refused to hear a petition challenging a law criminalising gay sex, a setback for gay rights activists battling in the country’s courts to get the ban overturned.
A number of well-known lesbian, gay and bisexual Indians had argued that Section 377 of India’s penal code, which prohibits “carnal intercourse against the order of nature with any man, woman or animal”, undermined their fundamental rights by failing to protect their sexual preferences.
The decision is the latest setback India’s gay community has faced in its fight to get a prohibition on homosexual sex overturned ever since the Supreme Court reinstated a colonial-era ban in late 2013.
That ban ended a four-year period of decriminalisation that had helped bring homosexuality increasingly out into the open in a deeply conservative society.
Discrimination faced by homosexual communities across the world was thrown into sharp relief again this month after a gunman slaughtered 49 people at a gay nightclub in Florida.
Some Western countries have pressured India to overturn its ban on gay sex and respect human rights regardless of sexual orientation.
‘Godman’ in jail for 20 years
Most dramatically, on August 28, a CBI judge in Haryana sentenced Gurmeet Ram Rahim Singh, a flamboyant guru-cum-action-star, to 20 years in prison for the rape of his two female devoted followers. Such “godmen” often seem to be beyond the reach of the law, with their wealth, devoted followings and close ties to politicians.
Singh had been openly wooed by senior figures in the ruling Bharatiya Janata Party. They donated money to his organisation and were photographed kissing his feet.
Tens of thousands of his followers besieged the town where his trial was held: despite a massive police presence, 38 people died in riots after his conviction. But in a country where the powerful often find ways to “turn” witnesses and influence judges, his punishment was widely seen as a victory for justice.
Women entry to inner sanctum of Haji Ali Dargah
Women in India have the right to fully access a famous mosque in the city of Mumbai, a top court ruled, bolstering a nationwide campaign aimed at securing women their religious rights and allowing them entry into all places of worship.
Ruling on a petition filed by Muslim women’s rights activists who demanded entry to the men-only inner sanctum of the Haji Ali Dargah, a Mumbai High Court bench said the restriction violated women’s fundamental right to equality.
The 15th century shrine, built on an islet 500 metres from the city’s coast, can only be reached at low tide and draws tens of thousands of worshippers every year.
In 2012, the trust which manages the shrine imposed a ban on women entering its inner sanctum saying that it would a “grievous sin” to allow women near the tomb of Sufi saint Haji Ali who is buried there.